• Ms Raveen Kaur

The tort of 'Negligence'


In simple terms, negligence is the act of doing something which was not supposed to be done, the result of which causes harm to someone; or something which was meant to be done was omitted, such as some act of duty, the not happening of which led to dire consequences for someone.

Legally, Negligence is the failure to reach the standard of behaviour that is expected from someone of ordinary prudence to perform under the same situation. It doesn’t just consist of doing some act which is not to be done but also the omitting of some act which was to be performed (e.g., a duty to help victims of one's previous conduct).


  • Legal duty

There must be a legal duty that the defendant has towards the plaintiff. When the law recognises a relationship between the defendant and the plaintiff, the defendant is bound by his duty to act in a certain manner towards the plaintiff. For instance, while loading bags of grains onto a truck, the defendant strikes a child. The question which arises here is whether the defendant had any duty towards the child?

  • Breach of Duty

A defendant can be held liable for negligence if he breached any duty which he had towards the plaintiff. Breach of duty, in this case, refers to the failure of taking reasonable care while performing the duty. For instance, the decision will lie in the hands of the court to decide whether the defendant exercised reasonable care in handling the bag of grains near the child.

  • Cause in Fact

The burden lies on the plaintiff to prove that it was because of the negligence of the defendant that he suffered the injury. So here the burden of proof lies with the plaintiff. The child being the plaintiff here has to prove that it was due to the negligence of the defendant that he suffered the injury.

  • Damage/Injury

The plaintiff suffered some type of injury or loss that is compensable by the defendant or the court. The plaintiff has to prove that he suffered injury to person or property which was a loss for him because of the negligence of the defendant. Stating that the defendant didn’t exercise reasonable care is not enough.


There are generally three degrees of negligence:

  1. Slight negligence

  2. Gross negligence

  3. Reckless negligence

Wherein the Slight negligence is found in cases where a defendant is required to exercise such a high degree of care, that even a slight breach of this care will result in liability. Gross or reckless Negligence leads to criminal negligence.


Negligence in Criminal Law is made provision for in S. 304-A of the Indian Penal Code. Initially, when the act was enforced in 1860, no provision for an act of negligence was made for in the IPC. However, in 1870 S.304-A was inserted in the Code by the Indian Penal (Amendment) Act, 1870.

S. 304-A of Indian Penal Code, 1860 states that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A are :

  1. Death of human being;

  2. The accused caused the death; and

  3. The death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.

Following are some illustrations to understand the act of negligence better:

  1. A nurse without realising gives an extra dose of medication to the patient which leads to some severity in the condition of the patient and eventually leads to his death; the nurse shall be held to be criminally negligible.

  2. A man drives after consuming an entire bottle of scotch, due to his rash driving and drunken condition he speeds onto the footpath this killing two people sleeping on the footpath. He is held to be criminally negligent and shall be punished as per the provisions laid down in the IPC.


Negligence in Civil law refers to Negligence in Law of Torts. The word Negligence is derived from the Latin term “Negligentia” which means “failing to pick up”.

According to Winfield and Jolowicz, “Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.”

Since Law of Torts is based on English law and most laws made in India are based on the principles of the English Law of Tort we can say that Law relating to negligence is adopted and modified by the courts of India on the principles of Justice, Equity and Good Conscience.

Negligence in Tort is defined by Winfield and Jolowicz as “Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.


The following two doctrines support the elements of Negligence. They are

  1. Res ipsa Loquitur, and

  2. Negligence per se

Both the doctrines assist in proving a breach of duty in certain negligence cases. Res Ipsa Loquitur allows negligence to be inferred from the circumstances while Negligence per se allows it to be inferred from a violation of the law. Both have many applications that allow causes of action to go forward where there is a lack of direct evidence proving negligence.

  • Res Ipsa Loquitur:

The Latin maxim Res Ipsa Loquitur means “the thing speaks for itself”. Generally, the burden is on Plaintiff to prove by providing some evidence that it was due to the negligence of the defendant that the accident occurred. However, the doctrine of Res Ipsa Loquitur shifts the burden of proof on the defendant.

In cases of personal injury, this principle operates as an evidentiary rule. If the Plaintiff presents certain Circumstantial evidence, the burden befalls on the defendant to prove whether he was negligent or not.

Elements of Res Ipsa Loquitur

The following are the essential elements of Res Ipsa Loquitur:

  • The defendant was in exclusive control of the situation or the instrument that caused the injury;

  • The injury would have not ordinarily occurred if it was not because of the defendant's negligence;

  • Plaintiff’s injury was not a result of his own action or contribution.

If the above elements are met then the burden shifts on the defendant to prove that he was not negligent.

The maxim of Res Ipsa Loquitur has mostly applied in Medical cases i.e. mostly accident cases and Tort Feasor cases where the plaintiff is not able to determine as to whose negligence led to the incident which injured him. It is not applicable in cases where the defendant had taken all measures of reasonable care to prevent any accident to anyone and in case such an accident occurs was beyond the ordinary control of the defendant. The principle of Res Ipsa Loquitur was applied first time in the English Tort case Byrne v. Boadle.

The facts of the case are as follows:

Plaintiff Byrne alleged that he was walking along Liverpool’s Scotland road when he came along a flour shop owned by Defendant Boadle. His employees were lowering barrels of flour from a second-story storage room into a cart on the street using a hoist and rope. Suddenly, a barrel of flour fell from the hoist and struck him on the shoulder which severely injured him. Byrne filed a suit of tort against Boadle before the Assessor of the Court of Passage. At trial, witnesses verified Byrne's accusations verifying that he was injured due to the barrel falling on his shoulder. However, Byrne could not present any valid evidence proving negligence on part of either Boadle or his employees which caused his injury. The trial court found no particular evidence of Boadle's negligence and thus granted judgement in favour of Boadle.

  • Negligence Per Se

It means the Violation of a standard of care set by statute.

The doctrine of Negligence Per Se is a personal injury law principle that defines an act as negligent when it violates a law that has been designed to protect the public.

Negligence per se permits an issue that ordinarily would be decided by a jury(standard of care/breach) to be taken away from the jury.

Important elements for proving Negligence per se are:

  • The statute prohibits or requires action.

  • Statutory Violation (with no excuse)

  • Plaintiffs injuries are the kind the statute was designed to protect against.

  • Statutory Intent- the intent for the statute being made was to protect a class of persons.

  • The casual link between Violation and Injury.


  • Contributory Negligence

It was the common rule of law that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. (Butterfield v. Forrester.)

  • Act of God or Vis Major

The Latin term Vis Major means “superior force”. Natural elements or occurrences (eg. Tornadoes, earthquake, flood, etc) which lead to cause severe damages or disruption which is beyond the control/anticipation or prevention of humans regardless of the skill, care or diligence maintained by humans. This is considered to be an Act of God. (Nicholas v. Marsland)

  • Inevitable Accident

An inevitable accident is one that could not possibly be prevented by the exercise of ordinary care, caution and skill. It is a physically unavoidable accident. (Brown v. Kendal)

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